Federal Appeals Court Rejects Illinois' Eavesdropping Law As Likely Violating The First Amendment

from the good-for-them dept

We've been covering Illinois' ridiculous "anti-eavesdropping" law, which has been used a few times against individuals who record the police in public. For reasons that are beyond me, Illinois' attorney general has been not only quick to use the law (often in a very vindictive manner), but also has been pretty adamant in his defense that it was a perfectly reasonable law (despite other rulings that make it clear that recording police is perfectly reasonable). A few state courts have been rejecting the law as unconstitutional, but now a federal appeals court has weighed in and suggested that the law may violate the First Amendment. For now, it has simply sent the case back to the lower court to reconsider:

The Illinois eavesdropping statute restricts a medium
of expression commonly used for the preservation and
communication of information and ideas, thus triggering
First Amendment scrutiny. Illinois has criminalized
the nonconsensual recording of most any oral communication,
including recordings of public officials doing the
public’s business in public and regardless of whether
the recording is open or surreptitious. Defending the
broad sweep of this statute, the State’s Attorney relies on
the government’s interest in protecting conversational
privacy, but that interest is not implicated when police
officers are performing their duties in public places and
engaging in public communications audible to persons
who witness the events. Even under the more lenient
intermediate standard of scrutiny applicable to contentneutral
burdens on speech, this application of the statute
very likely flunks. The Illinois eavesdropping statute
restricts far more speech than necessary to protect legitimate
privacy interests; as applied to the facts alleged
here, it likely violates the First Amendment’s freespeech
and free-press guarantees.

It's good to see more and more courts rejecting these cases that clearly serve no purpose other than to scare off whistleblowers. Frankly, the state government should have recognized this long ago and not only dumped such a law, but then refused to bring such cases or stand behind such a ridiculous and unconstitutional law.

Unfortunately, this ruling was not unanimous among the three judge panel. Well respected appeals court judge Richard Posner -- who had already expressed concerns that if people were allowed to film the police, they might continue to do so -- disagreed with his colleagues and wrote a dissent on the ruling. Posner's argument seems to hinge on the idea that police might discuss private things in public places (not that any of the cases to date seem to involve that), and thus he fears that a wholesale rejection of the law goes too far. Even so, that seems like a bizarre ruling. Why should others get into legal trouble (and face jailtime) just because someone decided to discuss private info in public? Shouldn't the onus be on the person making those statements not to have revealed them in public?

Posner uses the dissent to launch an attack on supporters of a strong First Amendment, arguing that such an interpretation is inconsistent with how the Bill of Rights was written and would obliterate all sorts of laws that go up against the First Amendment. That seems like a rather extreme extrapolation.

Even today, with the right to free
speech expanding in all directions, it remains a partial,
a qualified, right. To make it complete would render
unconstitutional defamation law, copyright law, trade
secret law, and trademark law; tort liability for wiretapping,
other electronic eavesdropping, and publicly
depicting a person in a “false light”; laws criminalizing
the publication of military secrets and the dissemination
of child pornography; conspiracy law (thus including
much of antitrust law); prohibitions of criminal solicitation,
threats and fighting words, securities fraud, and
false advertising of quack medical remedies; the regulation
of marches, parades, and other demonstrations
whatever their objective; limitations on free speech
in prisons; laws limiting the televising of judicial proceedings;
what little is left of permitted regulation
of campaign expenditures; public school disciplining of
inflammatory or disruptive student speech; the attorneyclient,
spousal, and physician-patient privileges in cases
in which an attorney or spouse or physician would like
to speak but is forbidden by the privilege to do so;
laws making medical records confidential; and prohibitions
against the public disclosure of jurors’ names in
cases in which jurors might be harassed. All these legal
restrictions of free speech are permitted

He goes on to point out that recording the police in public may make them not be able to do their job:

An officer may freeze if he sees a journalist
recording a conversation between the officer and
a crime suspect, crime victim, or dissatisfied member
of the public. He may be concerned when any stranger
moves into earshot, or when he sees a recording
device (even a cell phone, for modern cell phones are
digital audio recorders) in the stranger’s hand. To
distract police during tense encounters with citizens
endangers public safety and undermines effective law
enforcement.

That seems like a pretty extreme hypothetical, and a nonsensical one once you think about it. If police are so distracted by someone filming them in public, they either shouldn't be in that job or need better training. It's hard to see how Posner's argument makes much sense, so I'm glad he was outvoted by his fellow judges, but his interpretation of the First Amendment is still worrisome.

Reader Comments

Re: Absolutely Wrong

Isn't the right to liberty an absolute right? Or can Govt lock up people up on a Robespierre whim?

Not on a whim, no, but with due process of law? Yes, absolutely. I wouldn't want to live somewhere where that wasn't true, and for all your rhetoric, I don't think you would either. (If you do, try moving to Somalia. They've had no government, "big" or otherwise, to enforce the laws for years now. Should be a paradise, right?)